Standing Committee D

[Mr. Edward O'Hara in the Chair]

Extradition Bill

Clause 154 - Search and seizure warrants

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I welcome the Under-Secretary of State for the Home Department, the hon. Member for North Swindon (Mr. Wills), who will respond to my remarks.
 I want to explore whether the procedure for search and seizure warrants in part 4 is identical to what has been used previously, because as I discussed this morning with the Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth), we are talking about replacing completely existing extradition law with the Bill in its final form. On an issue as potentially sensitive as the powers of search and seizure, it is important to know whether the Government are changing the established law in relation to extradition. I may have more to say, depending on this Minister's response. Are there any changes? If so, what are they?

Michael Wills: Obviously, all the clauses are important, but it might be helpful if I spell out the reasoning behind clause 154 and some subsequent clauses. Much of what I say will also throw light on those clauses.
 When an extradition request is submitted, whether a European arrest warrant or a part 2 request, the requesting state may ask that the United Kingdom police search for evidence that may be useful in the prosecution. It was thought that the police could carry out such a request under the Police and Criminal Evidence Act 1984 or their common law powers, but the Rottman case cast doubt on that. In that case, it was initially held that the search and seizure powers in PACE applied only to domestic offences. It was also held that, since the advent of PACE, the police could no longer rely on their common law powers in this respect. 
 The Rottman case was partially overturned on appeal, but we took the decision, with the support of the police, who wanted to be clear about their powers, to put the matter beyond doubt by including the relevant provision in the Bill. We considered simply amending PACE to make it apply to extradition offences as defined in the Bill. On the face of it, that would be quite straightforward, but PACE talks about officers as investigating officers, and it was made clear in the Rottman case that officers executing extradition requests are not investigating the offence in question. 
 It was also felt that we could not simply add extradition offences to PACE, as there are some parts of it that would not apply. 
 Clause 154 is therefore modelled on section 8 of PACE and section 352 of the Proceeds of Crime Act 2002, and the powers conferred on the police are similar. It sets out the procedure for applying for a search and seizure warrant, the circumstances in which one can be issued and what it can be used for. 
 I hope that I have given the hon. Gentleman enough of an indication as to why we are taking this approach, but I am happy to respond to any detailed points.

Nick Hawkins: I am grateful to the Minister. The position is much as we thought. We had a helpful briefing from the Metropolitan police, which played a significant role in developing part 4, working closely with the Extradition Bill team. The mutual legal assistance legislation was explained and the fact that the Bill is modelled on PACE. We have also read the Government's explanatory notes.
 The Metropolitan police briefing said that there is no suggestion that police officers should interview arrested persons to obtain evidence. In other words, we are back to the subject of fishing expeditions that we discussed with the Under-Secretary earlier. The Metropolitan police says that the powers will allow evidence of the offence abroad to be searched for and seized where it is believed to be in a particular location. We will consider other clauses later, and it was helpful that the Minister could go beyond clause 154 and talk about the thinking behind this part of the Bill. 
 We do not seek to oppose the Government's proposition but we are glad to know that they are aware of the sensitivities of search and seizure, especially in the aftermath of the appalling murder of the detective constable yesterday in Manchester. We all need to be aware of the sensitivities of any search and seizure operations conducted by the police. Having said that, I shall not prolong the Committee's time on the stand part debate.

John Burnett: I want to be clear that those elements of PACE that are included ensure that it is explained to individuals that they have a right to legal advice, legal aid and if necessary the right to have an interpreter, which is essential in some of these cases.

Michael Wills: I am happy to give the hon. Gentleman that assurance.
 Question put and agreed to. 
 Clause 154 ordered to stand part of the Bill. 
 Clauses 155 and 156 ordered to stand part of the Bill.

Clause 157 - Computer information

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I want briefly to raise the issue of computer information. The Government's helpful explanatory note on the clause is very short; it consists of three lines only. There is far less by way
 of explanation than the number of lines in the clause. It is important to put a few things on the record about when computer information will be sought. As the Minister is aware, the law needs to be particularly sensitive when we are talking about material being downloaded, as the matter is in the public eye in a different context.
 Will the Minister say something about how the clause has been drawn and how it interrelates with the PACE provisions that we discussed in clause 154? Is the hon. Gentleman satisfied that there will not be a vast increase in litigation if people challenge the way in which computer information is produced? Subsection (3) states that the order has effect to give the constable access to the material in a form 
''(a) in which it is visible and legible, or
(b) from which it can readily be produced in a visible and legible form.''
 We need to know more about how the information will be produced and whether it will place too onerous an obligation on those who are subject to the orders.

Michael Wills: I am happy to give the hon. Gentleman such reassurance as I can. The clause results from our desire to clarify the position after the Rottman case, as did the previous clause that we discussed.
 Clause 157 echoes paragraph 5 of schedule 1 of PACE and therefore applies if material specified in an application for a production order dealt with in clauses 155 and 156 is held in electronic form. In such circumstances, the material must be produced for a constable, and access must be given to it in a form in which it can be taken away, seen and read. The hon. Gentleman will understand that we have no desire to give rise to a considerable volume of litigation. However, it is a matter of common sense that when encryption packages, for example, are widely available and can be purchased via the internet, it would make nonsense of the intent of the clause and of the Bill as a whole, if people were to produce something in encrypted form which was useless for all practical purposes. A common-sense approach would make clear what was intended by the clause. 
 A production order requires the subject of the order to give up excluded or special procedure material within seven days of the order being made. Perhaps it will help or reassure the hon. Gentleman if I further explain jargon. Excluded material is fully defined in section 11 of PACE, and includes any of the following that are held in confidence: personal business records, human tissue held for diagnosis, or journalistic material. Special procedure material, which is defined in section 14 of PACE, includes other material acquired or created in the course of business, also held in confidence. 
 Clause 171 requires the Secretary of State to issue codes of practice on the operation of the powers contained in part 4. These codes will have to be laid before Parliament and will be subject to the affirmative resolution procedure, so the detail will be subject to further scrutiny. We are anxious to address any further concerns that people have in this area. I hope that, 
 with those assurances, the Committee will see fit to agree that the clause should stand part of the Bill.

Nick Hawkins: I am glad that I raised the issue in a short stand part debate. The Minister's response has been helpful, and it is useful to have these things on the record. Time may be saved, as the Minister has referred forward to clause 171, and I intended to ask questions about the affirmative resolution procedure and what the Government had in mind when we reached that clause. Perhaps I will not need to do that now. Given that the Minister has raised the matter, and that there is a link between clause 157, clause 171 and the Secretary of State's powers, can the Minister say how soon he or the Government expect the codes of practice to be available? I am not trying to tie him down to a specific date, but it would be helpful if he could give us a rough idea.

Michael Wills: At this stage, I can say only that the codes will be available as soon as possible. We attach importance to the Bill and wish to get it sorted out as quickly as possible. However, I cannot specify the number of weeks or days.

Nick Hawkins: That is helpful. I see the deus ex machina operating—the Minister was taking advice as he got to his feet. Whenever we have a Bill of this sort, which introduces major changes to our law and envisages certain things coming into existence, the full import of which will only be clear once they exist, it is important that there is not a huge gap between the legislation receiving Royal Assent and, in this instance, the codes of practice becoming available.
 It would be helpful, and in keeping with the way in which the Government have been publishing Bills in draft for pre-legislative scrutiny, as happened with this Bill, if an early draft of the codes of practice could be produced for Parliament to examine before consideration is completed. The other Under-Secretary of State for the Home Department will remember that this issue arose frequently during consideration of the Proceeds of Crime Bill last year. He was helpful when my hon. Friend the Member for Beaconsfield (Mr. Grieve) and I were pressing him on the various codes of practice, and he was able to provide some early drafts of those codes during the lengthy consideration of the Bill in Committee. I am sure that it would be helpful to members of another place, and indeed to the House on Commons on Report, if the Government were to issue a letter setting out their thinking on what could be included in the code of practice. That would give us an early opportunity to see how the legislation will work. Only if we see some idea of what the code of practice will look like can we analyse this part of the Bill. I hope that I am not making unrealistic or unreasonable requests. I realise that the Minister cannot give me a firm assurance, but I thought it helpful to put my request on the record.

Michael Wills: I assure the hon. Gentleman that we hear what he says and listen with sympathy to his request. We will do our best to accede as quickly as possible.

Nick Hawkins: In the light of that helpful assurance, I shall not pursue the stand part debate.
 Question put and agreed. 
 Clause 157 ordered to stand part of the Bill.

Clause 158 - Warrants: special procedure material and excluded material

Question proposed, That the clause stand part of the Bill.

John Burnett: Committee sittings are useful to tease out the Government's underlying thought processes and to place certain matters on the record. The clause contains powers to allow seizure of excluded material and, I presume, powers to enter premises without consent. I draw the Committee's attention to subsection (6), which is an important provision. It states:
''Material falls within this subsection if it would be likely to be admissible evidence at a trial in the relevant part of the United Kingdom for the offence specified in the application for the warrant''.
 I presume the Minister will confirm that in this case dual criminality still applies. We are talking about offences in this country rather than one of the 32 offences that we have criticised in the past because of their nebulous and uncertain nature. We talked about swindling, racism, xenophobia and so forth. I would like to know whether dual criminality is being preserved in subsection (6). 
 I turn to subsection (8), which concerns the requirement. I should like to know a little more from the Minister about paragraph (c), which specifies that 
''the material contains information which is subject to a restriction on disclosure or an obligation of secrecy contained in an enactment''.
 I would also like confirmation on the record that the material that might be sought will not breach the principle of legal privilege, so documents and notes kept by lawyers on behalf of an individual will not and cannot be sought by this enactment.

Michael Wills: As always, the hon. Gentleman raises some important points. I hope to reassure him on all of them. I remind him that much of the detail will be in the code of practice, which will be subject to the affirmative resolution procedure. There will be an opportunity to scrutinise the provision in detail. I agree that it repays such scrutiny.
 The hon. Gentleman asked whether dual criminality would apply. I am not sure whether he was asking if it would apply sometimes or whether the principle was being asserted in the clause. The answer to both questions is no. There is no principle of dual criminality. There are circumstances in which it might apply and others in which it might not apply. I hope that is of some reassurance to him.

John Burnett: In clause 158(6), could
''the offence specified in the application for the warrant''
 be one of the 32 offences? It seems likely. Furthermore, the rules on admissibility are presumably the UK rules. Is that right?

Michael Wills: The hon. Gentleman seems to have arrived at the answer without much assistance from
 me. It depends on the offence for which extradition is being sought. If it is an offence for which dual criminality applies, dual criminality will apply, but if not, it will not. So if it is one of the 32 offences, it will fall into that category. I hope that that answers his question but, as I said, I think that he already got there himself.
 I have also been asked about subsection (8), and I hope that I can give some reassurance by saying that it is based on provisions in paragraph 12 of schedule 1 of the Police and Criminal Evidence Act 1984 for the issue of a similar warrant. We are essentially clarifying the position on extradition after the Rottman case. There are no huge advances or changes of principle involved; it is a clarifying measure that is rooted in PACE and requested and supported by the police. 
 Question put and agreed to. 
 Clause 158 ordered to stand part of the Bill.

Clause 159 - Entry and search of premises for

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: Although we were not talking about extradition in the first instance, the tragic murder of the police detective in Manchester yesterday has put into sharp focus the sensitivities and dangers that the police face when they enter and search premises. Will the Minister say what is envisaged by the clause and subsequent clauses? He has spoken about the link with PACE, and we referred in our first debate this afternoon to the way in which the arrangements are welcomed by the Metropolitan police and police services throughout the country. We have concerns about the entry and search of premises, so will the Minister clarify the position?

Michael Wills: Again, the clause is primarily a consequence of the Rottman case, and we are trying to clarify the position. It is firmly rooted in PACE, in replicating powers that are contained in sections 17 and 19 of that Act, and I am sure that Members will accept that it will sometimes be impossible to obtain a warrant before entering premises to arrest someone who is wanted for extradition, if that person is trying to run away, for example. That is why we have included the clause.
 I hope that I can reassure the hon. Gentleman by saying that, with the codes of practice and the inclusion of the affirmative resolution procedure, there will be plenty of opportunities for Parliament to satisfy itself about the detail. As I said, the clause is about clarifying the position, as requested and supported by the police.

Angela Watkinson: I am pleased to participate in only one Committee this afternoon, which means that I can pay somewhat better attention to the proceedings. I rise in some trepidation as I am flanked on each side by a lawyer, which I clearly am not. I shall couch my question in layman's terms.
 References have been made to the recent murder of a police officer. Is the Bill the appropriate piece of 
 legislation to ensure additional protection for police officers in the execution of their duties in such circumstances, as well as under the Terrorism Act 2000? I note that clause 161(9), which we have not yet discussed, states: 
''Nothing in this section affects the power conferred by section 43 of the Terrorism Act 2000''.
 Will the Minister assure us that there is adequate protection, or say whether additional protection is needed in legislation for police officers in the circumstances that we are discussing?

Michael Wills: I understand the hon. Lady's concerns. We are all deeply concerned about what happened. However, the hon. Lady and I are talking about different things. She will forgive me if I do not comment in any detail about what happened, as we are still digesting the news. We are talking about extradition, and the circumstances in Manchester were rather different, as far as we can tell. I understand her concerns, but we are talking about a different set of issues.
 Question put and agreed to. 
 Clause 159 ordered to stand part of the Bill. 
 Clause 160 ordered to stand part of the Bill.

Clause 161 - Search of person on arrest

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I shall make a point that may seem minor at first, but I hope that the Minister and those who advise him will take it seriously. It may interest some members of the Committee, many of whom entered the House of Commons at or since the 1997 election. As a Government Back Bencher during the 1992–97 Parliament, I served on the Committee that considered the Criminal Justice and Public Disorder Bill, and made a small but important contribution to English law that resulted in quite a lot of correspondence. The then hon. Member for Milton Keynes, North-East, Mr. Peter Butler, and I tabled an amendment that the Government accepted after some debate. It was a small amendment, but it enabled the police to do a great deal more searching. Since then, Mr. Butler and I, to our surprise, have received quite a lot of correspondence from police officers.
 A police magazine picked up on our amendment to give the police extra powers. We have been told that it is possible to carry out more effective searches because of our provision. It is always nice for a parliamentarian to know that a change that one has made, however small, has had some positive effect. I was immediately reminded of that when I read the clause and wondered whether I should move a similar amendment. I thought that it would be more appropriate to describe it on stand part and give the Government the opportunity to table a similar amendment, in Committee or on Report, if they are persuaded by the argument that I am about to advance. 
 The change to the Criminal Justice and Public Disorder Bill was the adding of the word ''hat'' after the word ''coat'', which became known as the Butler-Hawkins amendment. That change was of some significance, because Mr. Butler and I had practised as lawyers in the midlands before entering the House of Commons and knew that Rastafarian offenders tended to hide drugs or weapons under their hats. The police were severely constrained in what they had to do if they were not given the right to search under a Rastafarian's hat. As I said, we debated this amendment at some length and managed to persuade my right hon. Friend the Member for Penrith and The Border (David Maclean), then Minister of State at the Home Office and now the Opposition Chief Whip, and ministerial officials. I am sure that there are files on this somewhere, buried in the recesses of the Home Office, that say that the Government went along with the proposal. 
 The clause states: 
''The powers . . . do not authorise a constable to require a person to remove any of his clothing in public, other than an outer coat, jacket or gloves.''
 The Minister will not be able to give me an answer today, but I ask him to consider the idea and discuss it with his officials. If he can return with a Government amendment, that would have even greater power than an Opposition amendment, which the Government might feel duty bound to oppose, simply because it came from the Opposition. I want the change in the law to be made. It may sound trivial, but I consider it quite important. That is why I went into a little detail in setting out the background.

Boris Johnson: I rise in support of my hon. Friend's judicious suggestion. Can he clarify what he envisages under the term ''hat''? A Rastafarian who is asked to remove his hat may claim that it is an article of religious importance. I wonder, a fortiori, whether a Sikh would take umbrage at being asked to remove his turban. Does my hon. Friend think that a turban constitutes a hat for the purposes of his amendment?

Nick Hawkins: My hon. Friend goes to the heart of the debate that we had when we considered the 1994 Bill. It was made clear that the Government would not have been able to accept the amendment that Mr. Butler and I proposed if it had applied to turbans. The Rastafarian hat has never been accepted by the British courts as being part of the religion, unlike turbans, which have. That is the distinction. I am not surprised that my hon. Friend immediately went to one of the points that were raised at the time. It may seem trivial, but it is in fact a matter of some substance. That is why I mentioned that the police had written to both of us—Mr. Butler and myself—to say that the amendment had been useful. Even a one word three-letter amendment can have some relevance. I know that the Minister cannot give me an answer today but I hope that he will consider the point.

John Burnett: I simply seek confirmation that the usual protections and rules will apply and that there will be sensitivity in both male and female searches.

Michael Wills: The hon. Member for Surrey Heath (Mr. Hawkins) was certainly right—I cannot give him a direct answer this afternoon. He raises an interesting point, and we shall approach it constructively. As our brief discussion has illustrated, there would be considerable drafting issues. We will have to ascertain whether there is a way forward, and then we will be in touch. I can certainly give the assurances that the hon. Member for Torridge and West Devon (Mr. Burnett) seeks. Protections are built in and there will be a chance to examine the code of practice. We will be sensitive to the concerns that he outlined.

Nick Hawkins: I expected that the Minister would give his usual courteous reply. As I have been able to establish that the amendment that I suggest was made to the then Criminal Justice and Public Disorder Bill, I do not think that any drafting problems would be insuperable. As I remember it, the amendment simply said, ''after 'coat' insert 'hat' ''. That is how it went into the Bill. There is a precedent. The provision is in legislation and it is still being used. I think that I would have noticed if it had been repealed or amended. I hope that the Minister comes to a profitable conclusion.

John Burnett: I am grateful to the Minister for his assurances. We note that the code of practice will be introduced and that it will be subject to the affirmative resolution procedure.
 Question put and agreed to. 
 Clause 161 ordered to stand part of the Bill. 
 Clauses 162 to 169 ordered to stand part of the Bill.

Clause 170 - Delivery of seized property

Michael Wills: I beg to move amendment No. 174, in
clause 170, page 90, line 31, at end insert— 
 '(7A) Subsection (2) applies to Scotland with the substitution of ''procurator fiscal'' for ''constable''.'.
 This is a technical amendment. The Bill reflects the procedure in England and Wales that enables a police constable to hand over certain items, but it does not reflect the practice in Scotland, where procurators fiscal are responsible for such matters. The amendment remedies that anomaly.

Nick Hawkins: We have no difficulty with the amendment, which seems perfectly sensible. The Law Society of Scotland raised one or two related issues, which I touched on in previous debates, and we shall come later to another of its suggestions. However, we certainly want the legislation to work effectively north of the border, and I have no doubt that with this amendment it will do so, so we have nothing to say in opposition to the amendment.
 Amendment agreed to. 
 Clause 170, as amended, ordered to stand part of the Bill.

Clause 171 - Codes of practice

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: Given what I said earlier, in the light of the Minister's helpful reference to the clause, I need not say much now. We talked about the codes of practice and early drafts of them, and the Minister said that he will do what he can. He said also that we need not debate the matter in detail now, because Parliament will have a good opportunity to consider it when the affirmative resolution procedure is used and the codes will be laid before Parliament.
 Given that the Minister relies so much on parliamentary scrutiny of the codes, as I do, and given that this is such a large part of the Bill, is there a chance that, when the affirmative resolution procedure is used, the codes will come before the House of Commons as a whole, rather than just a Committee? I am not sure whether he can answer that question today, but if he can at least say that he will consider it with the Home Secretary and officials, I will be grateful.

Michael Wills: As the hon. Gentleman well knows, I cannot give that commitment. At this stage, I can only say that we will consider the matter. I am sure that the business managers will have a view, but we will consider carefully what the hon. Gentleman has said.

Nick Hawkins: I did not expect the Minister to say anything other than that, but at least I have said on the record that it would be helpful for the Government to consider the issue. It would be helpful if the business managers, notwithstanding the constraints on time, allowed the codes to come before the House as a whole. I say that because the Minister stresses that Parliament will have an opportunity to consider the matter when we have the codes. If we end up with only a short debate in Committee, that would not fulfil what he said earlier, which is why I am flagging up the issue now.
 Question put and agreed to. 
 Clause 171 ordered to stand part of the Bill.

Clause 172 - Interpretation

Nick Hawkins: I beg to move amendment No. 171, in
clause 172, page 91, line 34, at end insert— 
 '(c) in Scotland has the meaning given by section 33 of the Criminal Law (Consolidation) (Scotland) Act 1995.'.
 As I suggested, the Law Society of Scotland has helpfully sent us some possible amendments. I am slightly disappointed that the hon. Member for Orkney and Shetland (Mr. Carmichael) is not with us. I make no criticism of that, because he has been an extremely diligent member of the Committee, as he has been of all the Committees on which I have served with him, but I had hoped that we would have our Scots expert with us to talk about the provision.

John Burnett: I should at this stage give my hon. Friend's apologies. As has been said from the Government Benches, he is fishing—an important fisheries debate is taking place, in which he is either leading for our party or making a compelling contribution.

Nick Hawkins: As I would expect, the hon. Gentleman is missing only because he has other
 duties in the House of Commons. That gives me the opportunity to say that the new experimental hours will mean that hon. Members of all parties will often find themselves trying to be in two places at once. It was a free vote, and I want to put on the record that I totally opposed the new hours for that reason. I am amazed at the number of times that I come across Government Members in the Palace of Westminster who say, ''Don't blame me; I didn't vote for it.'' I am starting to wonder whether I should re-read the Division list to discover exactly who voted for the change, as it would never have been passed if all those Government Members had voted against it.

Edward O'Hara: Order. The hon. Gentleman has made his point.

Nick Hawkins: I simply wanted to get that off my chest and put it on the record, Mr. O'Hara.
 I make the serious point that it will be increasingly difficult for Committees considering important legislation to examine all the matters that are before them, especially if Members are missing. Under the old arrangements, there was an opportunity, more or less, for Committees to finish. Their sittings did not overlap with the sittings of the main Chamber as much as they do now. That is something that you might seriously take up as a member of the Chairmen's Panel, Mr. O'Hara. It is not a facetious point. 
 I hope that the hon. Member for Orkney and Shetland, who is in the main Chamber, may have given his hon. Friend the Member for Torridge and West Devon, who represents a constituency at the other end of the country, some insight into Scots law that he is about to share with us. I do not claim to be a Scots lawyer, although I once had to go on a crash course on Scottish matters as I used to do a great deal of work in Corby when I was a lawyer in the midlands. As some hon. Members will know, Corby was a steelworks town at that time. Much of its population had been transplanted from steelworks in Scotland to otherwise rural Northamptonshire. For some years, I regularly used to prosecute at the Corby magistrates court. Corby residents would ask me what the PF said. I had to be aware that if one came from Glasgow, as the residents' families did, the PF was the procurator fiscal. One needed to be aware of Scottish terminology, so I acquired a little indirect knowledge of what happens north of the border.

Edward O'Hara: Order. I trust that the Committee will find the hon. Gentleman's intervention relevant.

Nick Hawkins: The relevance is that the amendment would insert into the Bill
''the meaning given by section 33 of the Criminal Law Consolidation (Scotland) Act 1995.''
 I hope that the hon. Member for Orkney and Shetland will have briefed the hon. Member for Torridge and West Devon on how that operates in Scots law, and that the hon. Gentleman is about to tell us.

John Burnett: I apologise abjectly and nakedly that my knowledge of Scottish law is probably less extensive that that of the hon. Member for Surrey
 Heath. That said, I practised as a tax specialist and occasionally came across odd expressions under Scottish law such as ''legitim''. I cannot explain what it means, but I believe that is has something to do with succession rights.
 I raise the matter of legal privilege and ask the Minister to provide reassurance on subsection (4), ''Items subject to legal privilege''. It is important that legal inroads are not made into legal privilege, and that individuals who are the subject of extradition proceedings are given the same civil rights and civil protection as others under our legal system. I am anxious to extract a reassurance from the Minister that legal advice and legal correspondence will always be protected from the prying eyes of the prosecution. Additionally, we want a similar level of protection for legal advice, correspondence and documents from overseas as well as UK lawyers. I am sure that the Committee would agree that the Minister's assurances on that matter are crucial.

Michael Wills: May I say for the record that not every member of Committee shares the analysis of House of Commons modernisation put forward by the hon. Member for Surrey Heath.
 I can be a little more constructive in responding to this amendment. We sympathise with its thrust and accept many of the arguments of both Opposition spokesmen. It is appropriate to include a definition of legal privilege for Scotland. As the hon. Member for Torridge and West Devon rightly said, under English law, legal professional privilege is a well recognised expression, covering communications between a client and his or her legal adviser and between them and third parties if made for the dominant purpose of pending or contemplated litigation. 
 The closest equivalent in Scots law is confidentiality. Section 33 of the Criminal Law Consolidation Act 1995, to which the amendment refers, is shortly to be repealed on the commencement of certain provisions of the Proceeds of Crime Act 2002. Section 412 of that Act restates the relevant definition in section 33 of the 1995 Act. We believe that it would be more appropriate to refer to the definition in the 2002 Act. On the understanding that we will table a Government amendment to achieve the same purpose on Report, I hope that the hon. Gentleman will withdraw the amendment. I also hope that that meets the hon. Gentleman's concerns.

Nick Hawkins: The Minister has provided precisely the sort of assurance about legal privilege that we and the Law Society of Scotland wanted. As mentioned by the Under-Secretary earlier, I was one of the two Opposition spokesmen on the Proceeds of Crime Bill, so it is appropriate that I accept its definition in section 412. Clearly, the Law Society of Scotland had not realised that the 1995 Act was about to be repealed and replaced. It is encouraging to hear that our concerns have, for the first time in Committee, brought about an express commitment to table a Government amendment. It may be minor triumph, but at least we have achieved it.

John Burnett: I wish I could remember more clearly, but I believe that we extracted a concession from the Minister's colleague earlier. I remind the hon. Member for Surrey Heath that time has not yet run on the Bill.

Edward O'Hara: I was about to call order—[Interruption.].

John Burnett: I am grateful to the Minister for his confirmation.

Nick Hawkins: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 172 ordered to stand part of the Bill.

Clause 173 - Customs officers

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: It would be useful to have a brief stand part debate on the clause. Earlier this morning, we spoke about specified modifications in respect of service personnel. In that case, the Home Secretary applies this part of the Bill to service personnel with those modifications. Will the Minister explain how the modifications will apply to customs officers? In this clause, the Treasury rather than the Home Secretary is responsible. I am surprised that the clause specifies ''the Treasury''. Is that usual? The Minister may say that it is always stated in that form in legislation but I thought it was more common for a Cabinet Minister to be specified. The not-dissimilar provision about service law refers to the Secretary of State so why does not the clause state, ''The Chancellor of the Exchequer may by order provide''?
 Many hon. Members, whether they sit on the Government or the Opposition Benches, are worried about the Treasury's powers. I often think that things happen in this country only if the Treasury is happy with them and I have spoken regularly in Government and Opposition about the Treasury having far too much power. That is not a party political point; it applies whichever party is in government. 
 We need more explanation if the Treasury is to be given yet more power. Conservative Members entirely understand that Customs officers should have powers but they need to be more clearly specified. What parliamentary scrutiny will the orders be given when ''the Treasury'' rather than the Chancellor has the power to issue them? Will they be subject to affirmative resolution? If not, they should be. 
 The clause is short enough, but the explanatory notes consist of only two lines, which merely restate what is in the clause. I hope that the Minister will expand on the measure, because this is a serious matter.

John Burnett: I am also anxious to know the procedure. I have not seen section 6(3) of the Customs and Excise Management Act 1979, but I want to know the qualifications, seniority and experience of the individuals that the Treasury are likely to appoint to the role.

Michael Wills: I shall watch with great interest the campaign of the hon. Member for Surrey Heath to reduce the powers of the Treasury, something that successive generations of Ministers have tried to do. What is relevant is not so much the institution as the fact that it controls the money. The hon. Gentleman has embarked on a fairly hopeless exercise.
 No one in the Committee quarrels with the purpose of the clause. In appropriate circumstances, Customs officers should be able to execute European arrest warrants. They should therefore be governed by the same procedures, and the people they arrest should be afforded the same protections, as those who are arrested by the police. The clause provides the legal basis in that respect. 
 The hon. Gentleman asked whether the Treasury, in some amorphous guise, or a Minister would make the order. The order will have to be laid by a Minister and it will be subject to a negative resolution. 
 The hon. Member for Torridge and West Devon asked about the rank, seniority and qualifications of the Customs officers. The Bill originally referred to role of inspector, which was not appropriate for Customs; it will be a rank of appropriate seniority for the job. 
 I hope that my reassurances will satisfy the Committee that the clause should stand part of the Bill.

Nick Hawkins: I am not happy that the matter will be subject to a negative resolution. That is not good enough and we shall look at it again on Report and in another place. The clause is so brief, and so general, that it should come before the House under an affirmative resolution procedure. The Minister stressed that the House could debate the codes of practice under that procedure, and that should apply to this proposal. The clause, which will give the Treasury the power to do more or less what it likes, will go through the House on the nod, unless someone makes a big fuss about it, and that is not acceptable. It will no doubt be debated late on Monday night under something like order No. 18, when the Government hope that no one will challenge it. It is the sort of thing that they might try to get through on the last day before the summer recess, or Christmas. We all know how Government business managers arrange these things.
 I understand the Minister's misgivings about my campaign to reduce the power of the Treasury. Before he was a Member of Parliament, I was involved with hon. Members of all parties in one of the few successful campaigns to get a Budget changed, and we got it changed not once or twice but four times, until a particular industry was happy with it. I will not go into detail now, as I would be out of order, but I can give the Minister chapter and verse about what happened outside the Committee if he wishes. That does not happen often because, as the Minister rightly said, the Treasury controls the money but it can be done and I would be happy to share the secret with the Minister. His views suggest that he is not unsympathetic to the idea that the Treasury has too 
 much power, although perhaps I am intruding on private grief in that respect. 
 I am not happy about the proposal, but I will not divide the Committee as to do so would risk Ministers saying that the Opposition are trying to make mischief and water down the Bill. [Interruption.] We cannot win with the Under-Secretary, the hon. Member for Coventry, North-East, as he says either we are trying to water down his proposals or that we are too scared to take him on, but we are doing neither. We are making a serious point; we want Customs officers to have some power. 
 We may return to the issue on Report as there is a good case for having the affirmative resolution procedure on a clause that is so brief, but so wide-ranging. It is not right that measures that so affect people can be changed on the nod.

John Burnett: The main reason why the affirmative resolution is appropriate is that the clause deals with one law enforcement agency, but there are several and it is important that measures affecting them are co-ordinated. It is important, too, that those agencies realise what it is happening and with a negative resolution they are unlikely to do so, as it will not be flagged up.
 The Minister answered my question about the status—the seniority, qualifications and experience—of Customs officers by assuring the Committee that the officers would have appropriate seniority, experience and qualifications but it is not entirely clear what he meant by that. I hope that the Minister will elaborate on what he said.

Michael Wills: I could expatiate at great length on the matter but I am baffled by the hon. Gentleman's continuing concerns about the clause, which is straightforward. Everyone agrees that Customs officers should have the power. The Committee has had reassurance that a Minister will lay the order and Customs officers will be bound by the normal precautions that bind them in every area of their activities which, as the hon. Gentleman knows, are extremely sensitive and delicate and go to the heart of the matters about which he is most concerned. I hope that the Committee will now accept the clause.

John Burnett: I recall, when I was in practice, receiving a number of telephone calls about the robust attitude of Customs and Excise. I ask the Minister to bear that in mind.
 Question put and agreed to. 
 Clause 173 ordered to stand part of the Bill.

Clause 174 - Extradition to commonwealth countries etc.

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I need not detain the Committee long, but it might be helpful, with regard to the first amendments relating to Commonwealth countries and others, to have a brief stand part debate. We
 understand that counterpart provisions are needed on extradition to Commonwealth countries, British overseas territories and the Hong Kong Special Administrative Region of the People's Republic of China.
 Will the Minister clarify whether there are any changes in this legislation as compared with the previous extradition law? Obviously, one change since the late 1980s or early 1990s is that there was no such thing as the Hong Kong Special Administrative Region, and special arrangements may have been made after Hong Kong became such a region after the lease came to an end. Will the Minister say briefly what changes, if any, the Bill introduces? I thought this the appropriate moment to raise that general point. I have specific queries on one or two clauses, but at this stage I should be grateful if the Minister would just give us the background.

Michael Wills: I can be brief. The Committee is aware that clause 174 provides that an Order in Council may apply any relevant extradition provision—that is, those that would apply to extradition from the United Kingdom to certain category 2 territories—to a British overseas territory in modified form. These provisions, when applied, will govern the extradition arrangements of that British overseas territory when extraditing to Commonwealth countries, other British overseas territories and the Hong Kong Special Administrative Region.
 The clause allows part 2 provisions to apply between British overseas territories and Commonwealth countries, or other British overseas territories or the HKSAR by Order in Council. The part 2 provisions can be applied with special modifications. It is in line with the Extradition Act 1989 that we make provision for the British overseas territories to be subject to an extradition request, and the clause enables us to do that. With that explanation, I hope that the clause will stand part of the Bill. 
 Question put and agreed to. 
 Clause 174 ordered to stand part of the Bill. 
 Clauses 175 to 177 ordered to stand part of the Bill.

Clause 178 - British overseas territories and

Michael Wills: I beg to move amendment No. 109, in
clause 178, page 94, line 11, leave out from 'applicable' to first 'to' in line 12 and insert 'to extradition'.

Edward O'Hara: With this it will be convenient to discuss Government amendment No. 110.

Michael Wills: These are minor technical amendments. My ministerial colleague wrote to every member of the Committee before Christmas to explain their purpose, so I hope that the Committee will understand if I am very brief.
 The amendments enable all the provisions relating to extradition from the UK to be applied in cases where the extradition is to a British overseas territory. Clause 178 enables those aspects of part 3 of the Bill—
 which deals with outgoing requests—that apply after extradition to the UK has taken place to be applied to extradition from the UK to a British overseas territory. It does not enable those provisions in part 3 relating to before extradition to the UK has taken place to be applied to extradition from the UK to a British overseas territory. The amendments simply ensure that all the provisions of part 3 apply in cases of extradition from the UK to a British overseas territory.

Nick Hawkins: I am grateful to the Minister. He is right to say that his fellow Minister wrote to all members of the Committee to explain the provisions. It never ceases to impress me that, even once a Bill has been brought into existence, the Ministers' civil servants in whichever Department is involved continue to keep it under scrutiny just to check the work of the parliamentary draftsmen. We are all grateful that they do so, because otherwise we would need to revise legislation further. It is one of the strengths of our procedure, and I pay tribute to them.
 I have always had an interest in how law applies to the British Overseas Territories. The Minister may recall the numerous occasions where I have spoken on Gibraltar, the Isle of Man and other places. I am glad that we are getting this legislation right. I have no objection to the Minister's amendments. It seems sensible that if the part after extradition should apply, then the parts before extradition should also apply. 
 Amendment agreed to. 
 Amendment made: No. 110 in page 94, line 12, leave out from second ''to'' to ''to'' in line 13 and insert ''extradition''.—[Mr. Wills.] 
 Clause 178, as amended, agreed to.

Clause 179 - Competing claims to extradition

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I seek some clarification from the Minister, because the explanatory notes do not clearly show whether there are any changes from the previous legal position in the arrangement for competing claims to extradition. It is likely that the subjects of competing claims to extradition will be serious villains. Will the Minister tell us whether there are concerns about this area of law? It strikes me that these will be among the most serious extradition cases and there will be particular sensitivities. I understand the proposal in clause 179 and there does not seem to be anything wrong with it. I do not object to it in principle, but I hope that the Minister will confirm my analysis that these cases are likely to be particularly significant. If we are talking about serious villains—as in most extraditions—we need to ensure that the law is right, because if we get such cases wrong, they are likely to lead to multiple appeals. I am conscious of what my hon. Friend the Member for Stratford-on-Avon (Mr. Maples) said about the case of Ramda and the length of time people were able to delay matters before the British courts. We do not want to see any loopholes left.

John Burnett: I refer the Minister to subsection (3), under which the Secretary of State must take into account various matters. Most of these I can understand; they are clearly based on judicially sound principles:
''the relative seriousness of the offences concerned'',
 which is obvious; and 
''the date when the warrant was issued''.
 The priority of time is often a legal principle; one is protected by the speed with which one acts. I do not understand the consideration in paragraph (b): 
''the place where each offence was committed (or was alleged to have been committed)''.
 I should like the Minister to explain its relevance as a criterion for the Secretary of State's decision on competing extradition claims. These conflicts are difficult and it is important to specify what details the Secretary of State should take into account in reflecting on these matters and reaching his conclusions.

Michael Wills: I am grateful to both Opposition spokesmen for raising important issues. The hon. Member for Surrey Heath is right to say that some quite dangerous people may be committing these serious offences, so we must be careful and clear. Competing requests have never been dealt with in law. Until now, it has been purely at the discretion of the Secretary of State. The clause's purpose is precisely to pin down the criteria and the procedures.
 The hon. Member for Torridge and West Devon asked about the relevance of place. It is quite straightforward: it is to help the Secretary of State to differentiate between an offence committed in the requesting country and one in a third state. ''Place'' is therefore one of the criteria that must be taken into account.

Nick Hawkins: I am thinking about the question asked by the hon. Member for Torridge and West Devon. In the Pinochet case, the request came from a Spanish magistrate, but related to crimes committed in the native country of Chile. Is that the sort of case that the Minister has in mind?

Michael Wills: Yes. I do not want to make a judgment about that particular case, but it is precisely what is envisaged in the provision. I hope that the Committee will accept that we are attempting to bring some clarity to the procedure in highly serious cases. As a result of my assurance to both hon. Gentlemen, I hope that the Committee will accept the clause.

John Burnett: The courts will probably reflect on what we say in Committee today with an eye to judicial review. I understand the Minister's difficulties, but could he give us a little more guidance? He is talking about the circumstances in which a requesting country and a third state are involved. One could conceive of having to make a choice between two requesting countries. I do not fully understand where ''place'' enters the picture in the circumstances posited by the hon. Member for Surrey Heath, for example, where a Spanish jurisdiction seeks extradition of a Chilean national. I acknowledge that these are sensitive matters, but it is wise for us to attempt to
 tease the problems out and make the law as clear as possible on behalf of judges as well as litigants.

Michael Wills: I am happy to be teased by the hon. Gentleman as long as he wishes to continue, but he is slightly missing the point. He is trying to pin me down to a hierarchy of considerations. I refer him to the clear wording of subsection (3), where
''the Secretary of State must take account of these matters''.
 It is left to the Secretary of State's discretion to weigh them up in the particular circumstances of each case. I will refrain from passing judgment on a particular case. We are trying to introduce clarity into delicate and sensitive cases that might be subject to protracted legal proceedings. If judicial review is relevant, the Secretary of State will have to take into account the considerations specified in the clause. It would be inappropriate to pin it down more firmly than that. It slightly misses the point and purpose of the clause.

Nick Hawkins: I am grateful to the Minister for his response. I am glad that I asked whether this was new law. For once the answer was yes, which emphasises how seriously we need to look at competing claims. I understand entirely the points made by the hon. Member for Torridge and West Devon. There is a more general point to which the Minister may not want to respond today. I hope that he and those who advise him will bear this in mind.
 In this new era of pre-legislative scrutiny it would be helpful if the explanatory notes were a little more clear. Opposition parties and outside organisations do not have armies of civil servants. When we are talking about complex legislation, it would assist us if the explanatory notes indicated when a clause was a restatement of the law and when, as here, it was a new provision they pointed that out and explained why. 
 I do not criticise the explanatory notes at all. I would not want the Minister to think that. It is helpful to have explanatory notes but my suggestion would be a useful addition to them. I do not expect the Minister to be able to give an undertaking to do that, but I put it on the record now, as this is an example where it would be terribly helpful to have that distinction made. This is one of the rare occasions when I have asked the question and not been told that this is what has always happened. 
 I understand that the Minister is trying to be as helpful as he can. He does not want to lay down a precise hierarchy, but I do not want to resile from the importance of the points made by the hon. Member for Torridge and West Devon. I agree with them. The Government may wish to look carefully at this. The matter might be explored again in another place. There may be experts on extradition who want to contribute to the debate. It has been a useful little debate. I am glad that I was able to tease some more detail out of the Minister.

John Burnett: I am not surprised to have received the reply that I got from the Minister. As the hon. Member for Surrey Heath said, it is likely that the
 matter will be probed rather more in another place. It is fair for judges and litigants to know exactly where they stand, the weight to be given to these different conditions and criteria and the reasons for them. I heard what the Minister said. We might revisit this at a later stage.
 Question put and agreed to. 
 Clause 179 ordered to stand part of the Bill. 
 Clause 180 and 181 ordered to stand part of the Bill.

Clause 182 - Grant of free legal aid: Northern Ireland

Nick Hawkins: I beg to move amendment No.172, in
clause 182, page 96, line 9, at end insert 
 'to which the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2002 apply.'.
 I am indebted once again to the Law Society of Scotland for alerting us to the issue here. I should like to put on the record my thanks not only to the Law Society of Scotland, but to other organisations for keeping an eye on what is happening in our proceedings. As recently as yesterday morning I received a further note from Mr. Michael Clancy, the very helpful director of the Law Society of Scotland, saying that it had received some reassurances from the Home Office. He has also received confirmation from the Scottish Executive that the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2002 will be amended in the light of the passage of the Bill, if it is passed. 
 In other words, the Law Society of Scotland persuaded us to table an amendment, which was then selected for debate. As a result, there has been further scrutiny of the matter, and the Scottish Executive have now been able to reassure the Law Society of Scotland that the necessary change will be made to the regulations, and I hope that the Minister will confirm that on the record. That shows the advantage of tabling amendments and has been a good example of the system working properly. I wanted to pay tribute to the Law Society of Scotland on not only originally identifying the point, but keeping me up to date with the progress.

John Burnett: It is important that our legislation is correct and that all parts of the United Kingdom take a part in its framing and completion. The hon. Member for Surrey Heath is right—we are all grateful to the Law Society of Scotland for its efforts.
 I want to put one point on the record on legal aid, which is effectively straying to clauses 183 and 184, as well as 182, but I seek only—

Edward O'Hara: Order. The hon. Gentleman should stick only to the terms of amendment No. 172, which refers to the Criminal Legal Aid (Fixed Payment) (Scotland) Amendment Regulations 2002.

John Burnett: In that case, I shall leave some of my comments until later. However, will the Minister confirm that in Scotland full legal aid will be available for the necessary representation of individuals throughout proceedings in extradition
 cases, including not only legal representation, but interpretation?

Michael Wills: I can certainly give the hon. Gentleman that assurance.
 I was not sure whether the hon. Member for Surrey Heath already said that he would withdraw the amendment, but I will not surprise him by inviting him shortly to do so. I think that he can guess why, and there are two grounds. First, I am concerned that the amendment would change the arrangements for legal aid in Scotland, which is a devolved function and responsibility of the Scottish Parliament. Any such changes should be left to Edinburgh and its Committees. Having said that, the hon. Gentleman's understanding is correct. Scottish Executive officials, to whom he referred, have said to the Law Society of Scotland that proceedings under the Bill will be exempt, and when the Bill comes into effect, the necessary regulations will be amended in the Scottish Parliament. I understand that the Scottish Executive have already given a commitment to make the changes, so there is nothing between us. 
 Secondly, it is perhaps worth pointing out that the amendment is technically flawed as well, as it refers to regulations rather than primary legislation. As we know, regulations have a habit of changing titles, often simply because of consolidation, and it would be impractical for the House to amend the legislation every time that the Scottish Parliament approved a new system of fixed payment regulations. The amendment also refers to amendment regulations rather than the main regulations, which are the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999. 
 I hope that on the basis of that the hon. Gentleman will feel able to withdraw the amendment.

Nick Hawkins: I am entirely happy with that. The Minister has confirmed the position. I moved the amendment to get that on record, and I thought that it was important to pay tribute to Mr. Clancy. I understand the Minister's point about the amendment's technical deficiency, but he will understand that we tabled it in the terms that were given to us by the Law Society of Scotland. It has been helpful to have that, and if we had not tabled the amendment, the Scottish Executive officials may not have been able to deal with it. We have achieved the objective and there is nothing between us, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 182 ordered to stand part of the Bill. 
 Clause 183 ordered to stand part of the Bill.

Clause 184 - Free legal aid: supplementary

Question proposed, That the clause stand part of the Bill.

John Burnett: I have the Minister's confirmation that full legal aid will be available for all extradition proceedings in Scotland, which will include the costs of providing an interpreter or interpreters. I hope that the
 Minister will give me the same confirmation with regard to Northern Ireland, England and Wales.

Nick Hawkins: I was not going to detain the Committee by calling a stand part debate, but since the hon. Member for Torridge and West Devon has raised a different point I shall ask a question. I am curious as to why the two subsections (2)(b) and (4) are printed in italics. Perhaps it is a peculiarity of the printing. Can the Minister shed any light on that?

Michael Wills: I cannot shed any immediate light on why those subsections are printed in italics. I hope to be able to do so shortly—in fact I find that I am able to do so now. I am reliably informed that they must be printed in italics until the money resolution is passed. I am sure that many of us will have been enlightened by that.
 I am happy to give the hon. Member for Torridge and West Devon the assurances he requires, although I should point out that the clause refers to Northern Ireland. 
 Having given those responses, I hope that the clause can stand part of the Bill. 
 Question put and agreed to. 
 Clause 184 ordered to stand part of the Bill.

Clause 185 - Asylum appeal to High Court

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I am seeking reassurance from the Minister on a point that applies to both clauses 185 and 186, so perhaps he could deal with them together.
 I was not sure whether the hon. Member for Doncaster, North was rising in his seat to try to catch my eye to intervene, but perhaps not. Given that he was so helpful last time he intervened, supporting our side and not his own, I live in hope. 
 We are concerned, and I know that the Government are also concerned, that there will be no slowing down of extradition, and that people will be able to appeal at every stage. I refer to the points made by my hon. Friend the Member for Stratford-on-Avon about the length of appeals, and the length of time spent in the courts delaying the extradition of someone who should have been dealt with years ago by the courts of France. I want to ensure that the Government felt that they were toughening up the legislation sufficiently. Certainly I know that the Minister, unlike his fellow Minister, will not be able to accuse the Opposition this time of trying to water down the provisions. We are asking whether this legislation is tough enough, and whether there is still a danger that people will be able to slow things down by concurrently running asylum claims and trying to battle against extradition. 
 I suspect that this may be an area in which the law is new, and therefore differs from the previous extradition legislation. In this brief stand part debate, will the Minister speak about those matters in relation to this clause and to clause 186, so that I need not raise the same point again on the next clause?

John Burnett: I also look forward to hearing what the Minister has to say on situations in which there are concurrent claims for extradition and asylum. Presumably it is envisaged that the extradition proceedings will be closed before the asylum proceedings, but perhaps the Minister will let me have his views on how the provisions will work. We wish to ensure that there is a fair system of adjudication in both areas, that the claims of those who come here as asylum seekers and who are sought for extradition are properly and fairly weighed up, that the necessary civil rights and liberties are accorded to them, and that we do not seek to be moved too fast and too far by the fashion of the moment.

Michael Wills: The contributions of the hon. Members for Surrey Heath and for Torridge and West Devon tell us exactly what the clause is designed to do. Of course we must deal with an expeditious disposal of the process. The problems, which I will spell out, are costly, bureaucratic, and deny justice in the fullest sense of the word. Equally, as the hon. Member for Torridge and West Devon said, we must balance the rights of the individual, which is what the clause aims to do.
 The clause deals with a situation in which someone who is subject to extradition proceedings has claimed asylum but has been refused. Ordinarily, that person can appeal to an adjudicator. The clause replaces that appeal, as reference to section 83 of the Nationality, Immigration and Asylum Act 2002, with an appeal to the High Court. Under existing legislation, someone who is the subject of an extradition request would be entitled to apply for asylum like anyone else. Refusal of their application would open up several avenues to appeal the decision, which, when added to the various routes of appeal in extradition cases, could lead to a lengthy and complex process that overlaps with and duplicates arguments in court. 
 The provisions simplify and expedite the process while safeguarding the rights of the individual. The Government are determined that the asylum system should not be abused to delay a person's extradition. At the same time, we must be concerned that no person is deprived of the fundamental right to seek refuge in the face of persecution. Clauses 185 and 186 ensure that the asylum system will not be abused, but that it will not unfairly deprive the individual of their fundamental human rights. We have been invited to go further, which we do not want to do, and risk breaking our obligations under the refugee convention. Taken as a whole, clauses 185 and 39 strike a balance between these two different imperatives. 
 I hope that I have managed to satisfy both hon. Gentlemen.

John Burnett: I am trying to determine whether an individual who is claiming asylum will have his full rights and entitlement under British law to proceed with his claim, whether he will be able to resist extradition proceedings under the provisions, and whether his rights will not be unnecessarily and unfairly curtailed.

Michael Wills: I am sorry if I have not already given the hon. Gentleman that assurance. I sought to make it clear that there will be no unfair and unnecessary curtailment of an individual's fundamental human rights.

John Burnett: Under asylum legislation and extradition legislation.

Michael Wills: That has been made clear. We are replacing the existing mechanisms with an appeal to the High Court, which is a more expeditious way of dealing with the issue. Otherwise, we would run into the problems about which the hon. Member for Surrey Heath is concerned, as are the Government. The asylum process is in place to protect vulnerable people fleeing persecution. It is not to be abused by people who properly and rightly should be extradited to whatever country to face justice. That is our concern. The asylum system must not be abused, but we must protect the fundamental human rights of any individual. The clause achieves both those objectives.
 Clause 185 ordered to stand part of the Bill. 
 Clauses 186 to 190 ordered to stand part of the Bill.

Clause 191 - Bail

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I was pleased recently to hear the Government announce plans—rather belatedly, in my view—to restrict some of the so-called rights to bail under the Bail Act 1976. Indeed, the Home Secretary spoke about that the other day in relation to other legislation. Will the Minister say something about the interlinking between this legislation and other projected legislation? On Opposition amendments, we have talked about a potential mismatch in thinking in relation to the Crime (International Co-operation) Bill, which is in another place. We have sought to expose the Government's lack of logic between that legislation and this measure.
 In this instance, I suspect that we are talking about the Criminal Justice Bill. I am told that the Committee considering that Bill will sit for a number of weeks—almost as long as the Committee that considered the Proceeds of Crime Bill last year, on which I served with other members of this Committee. I gather that there are due to be 28 Committee sittings, some of which will be double sittings in the afternoon, with only a quarter of an hour break. If I may say so without going out of order, Mr. O'Hara, that is more of the nonsense that the new hours have brought upon us. I am genuinely concerned about that. 
 When my party was in government, I spent much time arguing that we needed to amend the Bail Act 1976 because it was one of the least workable pieces of legislation. When I practised at the Bar from the late 1970s to the late 1980s, I found that the Act led to more people being out who should have been in custody, if I may use that shorthand, than any other piece of legislation. It got things completely wrong. The Act was introduced when the previous Labour Government, the Wilson-Callaghan Government, 
 were still on their civil liberties kick, which the present Government seem largely to have abandoned. 
 One thing that went wrong with our criminal justice legislation was the establishment of the so-called right to bail. I believe that, if someone is accused of a criminal offence, particularly a serious one, they have no such right; it is a question of what the state decides is appropriate. 
 I am always interested when the 1976 Act appears for amendment in other legislation. I remember saying to colleagues when I first studied to be a lawyer—not long after the Act had been implemented—that one reason why I wanted to pursue my interest in politics was to try to do something about the appalling 1976 Act if I ever got into Parliament. That was genuinely one of my motivations for standing for election to this place, which is why I feel so strongly about any amendments that are proposed to that Act. 
 Did the Minister and his advisers think through the interlinking between these changes and the other things that they are planning to do to restrict the operation of the 1976 Act? I shall be delighted if the Government one day repeal the Act and replace it with something much tougher, in the same way that the Bill replaces previous legislation.

John Burnett: I take it that the hon. Gentleman believes in the presumption of innocence. It is a fundamental tenet of our justice system that someone is innocent until proved guilty and that the burden of proof is beyond reasonable doubt.

Nick Hawkins: Of course I do. The hon. Gentleman has heard me talk about the presumption of innocence in moving some amendments, but the presumption of innocence is different from a so-called right to bail. The most important function of any criminal justice system is to protect its citizens. If someone had a propensity to commit serious offences, especially if they had a record of having done so on bail, it would go too far for any legislation to refer to a right to bail. It certainly goes much further than the presumption of innocence in which every proper citizen of this country and all legally qualified people should and do believe. Having got that off my chest, I hope that the Minister will address the narrower point of how the change to the Bail Act 1976, which we welcome, will interlink with other current Government proposals. Will he also set out how it differs from the arrangements for bail under the previous extradition legislation?

Michael Wills: I do not intend to get involved in the argument between the two hon. Gentlemen about the jurisprudential basis for bail, although I assure the hon. Member for Surrey Heath that I listened to him with a great deal of care and attention, perhaps more than his party did when it was in Government. It ignored all his strong views on bail.
 I will not get into that discussion because the amendment raises a simple point that does not bear the weight of rhetoric that we heard from the hon. Member for Surrey Heath. The clause simply amends the 1976 Act so that extradition proceedings under the Bill are governed by the bail provisions that apply in other criminal justice proceedings. The hon. Gentleman asked about other Bills that are currently 
 passing through the House of Commons. This Bill will bring extradition proceedings in line with other criminal justice proceedings, so if the provisions of bail are altered, so will provisions of extradition. 
 The amendments to section 4 of the 1976 Act contained in the Bill will extend the presumption in favour of bail to proceedings in extradition cases in which a person is accused of an offence. That presumption does not currently apply—that should answer the hon. Gentleman's question—and the Bill will remove that anomaly by bringing extradition proceedings into line with other criminal proceedings. In conviction cases, the presumption in favour of bail rightly does not apply. 
 Subsections (7) to (11) will apply when a person has been granted bail in the course of extradition proceedings and will mean that the person is subject to the same liability to arrest as if he or she is granted bail and under a duty to surrender into custody in the course of a criminal case. Therefore, when a person fails to surrender as required, a magistrates court has the power to issue a warrant for his or her arrest. In addition, if there is reason to believe that the person is likely to break bail conditions or fail to surrender, he or she may be arrested without warrant by a constable. 
 All that we are doing is bringing extradition in line with domestic proceedings, and I hope that, on the basis of that explanation, hon. Members will agree that the clause should stand part of the Bill.

Nick Hawkins: The Minister says that my wider concerns about bail are not relevant, but he is mistaken. He said that there was not a presumption in favour of bail in extradition, but there will be now. He has already admitted that there are changes and that this is new law. For once, I was able to work that out from the explanatory notes, but I wanted to hear him say that on record. He rightly says that the presumption of bail does not apply after conviction, but I am not sure that there should be a presumption of bail anyway. Far from the Minister saying that my party did not listen to me about bail, he is saying that the Conservative 1989 Act did not include a presumption of bail, but that this Bill will include one. That is going in the wrong direction. Most of the time, the other Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth), has been at pains to say that the Bill is much tougher than previous Conservative legislation. However, with clause 191, the Government are making the Bill weaker in cases in which there has not been a conviction, because it introduces a presumption of bail that did not exist in previous legislation.
 I am not comfortable with the clause. It will be re-examined in another place, and I hope that the Minister will respond to the points that I have just made. The explanatory notes and Minister's comments seem to show that the Government are introducing a presumption of bail that did not exist before. That is going the wrong way.

Michael Wills: I will try again to try to make the point a bit clearer to the hon. Gentleman. The arguments
 about bail can be conducted in other forums. We are trying to remove an anomaly and bring extradition in line with other domestic proceedings, and I have not heard one word from the hon. Gentleman about why extradition should be dealt with differently. All his remarks about bail were general points, but if he wants to be listened to, he should argue with greater detail and precision than he has done so far.

Nick Hawkins: Perhaps it is my fault, but, as both Ministers said earlier, extradition is different. There is every reason why it should not be an anomaly. Both the Bill and previous extradition law make special arrangements for people facing extradition. Where the UK has decided that someone faces extradition, why should there be the presumption of bail? As I said, extradition is different; it is not an anomaly. A useful provision existed in previous law, which the Government are attempting to remove.

Michael Wills: I do not want to protract the debate unnecessarily. I ask the hon. Gentleman to reflect further on why bail should be treated differently for extradition proceedings than for domestic ones. Many differences apply in respect of the execution of warrants and so forth, but much of our debate has been about bringing the Bill into line with the Police and Criminal Evidence Act, removing anomalies and clarifying processes to eliminate doubt—in short, to streamline and expedite the proceedings. We are trying to remove an anomaly—we can argue about bail elsewhere—and if the hon. Gentleman feels so strongly about the matter, he must make his case with greater clarity and precision. I hope that we can now make progress.

Nick Hawkins: I shall not prolong the debate beyond saying that although the Minister is right to bring the Bill into line with other legislation, in extradition cases, where people have every temptation to abscond, bail is a different matter. I take the Minister's point that we may need a more precisely targeted debate either on Report or in another place, but it is important to place on record that it is unwise of the Government to make bail provisions for extradition cases the same as for other cases. Extradition is different because of the temptation to abscond. I shall not prolong the debate, as I said, but it has been helpful to place our concerns on the record so that the issues can be reconsidered on Report. It may well prove wiser to have no presumption of bail for extradition cases in line with previous Conservative legislation.
 Question put and agreed to. 
 Clause 191 ordered to stand part of the Bill.

Clause 192 - Extradition for more than one offence

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I do not know what issue the hon. Member for Torridge and West Devon will raise, but I would like brief clarification from the Minister. The explanatory notes provide only three lines on the
 clause. We are dealing with another Secretary of State's order-making power, though we do not know how wide it will be. Part 1 warrants are relevant, but I shall not go back over our general concerns about the operation of part 1.
 How will the Secretary of State use the order-making power? We may be talking about extremely serious cases. All matters resulting in extradition will be fairly serious. As with another matter that the Minister and I debated earlier, if there is more than one extraditable offence, it could be an extremely serious case. I hope that the Minister can provide a little more clarification.

John Burnett: The clause relates in part to the important principle of speciality. I remind the Committee of the wise words of the Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East, which were quoted in the excellent Home Affair Select Committee report. He said:
''We're retaining the principle that fugitives will only stand trial for the crime they were extradited for.''
 The clause relates to extradition for more than one offence. Given the importance of the principle of speciality, we do not believe that these modifications should be introduced in any other form than by affirmative resolution of both Houses. I look forward to hearing the Minister's views on the matter.

Michael Wills: Our proposal is that this process should take place by the negative resolution procedure However, we are always happy to listen to strong and detailed arguments for changing our mind on this issue. So far, both hon. Gentlemen have been admirably brief. I am unpersuaded of the need to change our proposal. I am happy to give way if either of them wants to go into more detail.

John Burnett: May I ask the Minister a few questions? First, does he believe that the doctrine of speciality is important? Secondly, if there are to be specified modifications to decide which offence or offences a person will be extradited for, does he not think the order should have the fullest debate and consultation? It will have that consideration if it is pursued by affirmative resolution, rather than through the back door by negative resolution.

Michael Wills: I am slightly baffled. Affirmative resolutions are for where proposals may be controversial and require a great deal of scrutiny. This is not the case here. The clause simply allows the Secretary of State to modify the provisions of the Bill in cases where there is more than one offence for which extradition is requested. That clearly must be sensible, just in terms of the expeditious dispatch of business.
 The extradition procedure will be exactly the same as is set out in the Bill. That is what we are discussing at great length in Committee. That should be reassurance for all members of the Committee. I am baffled as to why there is an urge to subject this process to the affirmative resolution procedure, but we are always happy to listen to good arguments. There has to be a process for accommodating multiple requests. We are simply suggesting that that will be set out in an order and will be subject to a negative 
 resolution. It is a purely administrative measure to deal with the expeditious despatch of business.

Nick Hawkins: The Minister may be able to reassure me to some extent. Rather like the hon. Member for Torridge and West Devon, I should like to ask the Minister two questions. First, does he envisage that there will probably be only one order? Was there simply not time to put all the details for multiple requests into the Bill?
 The clause provides a one-off occasion for the Secretary of State to make an order so that repeated modifications will not be brought before the House of Commons. Does the Minister recognise that, because of the greater political sensitivity of part 1—a matter to which we shall undoubtedly refer again next Tuesday, but also on Report and in another place—we have had four Committee sittings on part 1 and one sitting or less on each remaining part of the Bill; and therefore anything relating to part 1 should be subject to the scrutiny of the House? 
 It is the reference to part 1 that makes the clause different. If, as on an earlier clause that we discussed with the Minister's colleague, a matter were subject to the affirmative resolution procedure under another part of the Bill, that would be less significant. That is not to say that the affirmative resolution procedure would be unnecessary in that case. We were happy that our debate led the Government to say that the matter would be subject to affirmative resolution. However, anything to do with part 1 is potentially more controversial and for that reason, as the time that we have spent on part 1 shows, it should be subject to the scrutiny of the House of Commons under the affirmative resolution procedure.

John Burnett: I wish to elaborate. As was conceded by the Under-Secretary of State, the hon. Member for
 Coventry, North-East, it is possible that because of the loss of the doctrine of dual criminality, extradition might be sought on two offences, one committed in this country and one committed elsewhere. I presume that such sensitive matters will be dealt with in the modifications, and that additionally some reference will be made to the notorious annex in the framework decision listing the 32 offences.
 I hope that the Minister will put on his thinking cap. In the space of a few minutes we have been able to give one or two compelling reasons why these modifications are important and should be widely consulted on, and why they should receive the most detailed scrutiny in the House of Commons. I hope that the Minister will agree that the affirmative resolution procedure is right.

Michael Wills: I do not want to labour the point, but I want to answer the specific questions. The first was whether there would be one order—the answer is yes, it will not come back over and over again. Secondly, the clause will not affect specialty. If someone is wanted for several offences, clause 192 allows all the offences to be covered, so specialty protection is not affected. We are trying to provide a procedure to deal with the matter. Of course we will consider what hon. Members have said, but at the moment I remain unpersuaded of the need to change the procedure we propose to adopt.
 Question put and agreed to. 
 Clause 192 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Derek Twigg.] 
 Adjourned accordingly at twenty-eight minutes past Four o'clock till Tuesday 21 January at twenty-five minutes past Nine o'clock.